The employee in this matter appealed the compensation judge’s decision denying benefits as she found the employee’s work injury was temporary and resolved. The employee worked as a cake decorator for Hy-Vee. On January 18, 2014 the employee tripped over a pallet at work and twisted her right ankle. The employee had some pre-existing ankle issues that required surgery in March and June 2000. However, the employee did not experience ankle pain from 2004 to the date of injury in 2014.
Following the employee’s work injury, she was prescribed a lace up ankle brace, physical therapy, and eventually a CAM boot. Subsequently, the employee sustained a non-work-related right ankle injury after her work injury. On April 30, 2014 Dr. Collier diagnosed the employee’s condition as a “lateral ankle sprain with exacerbation of arthritis.” In October 2014, Dr. Collier discussed the possibility of an ankle fusion.
Dr. Fey conducted an IME at the request of the Employer and Insurer in February 2015. He stated that the employee sustained a temporary lateral ankle sprain that would naturally resolve within a couple months, and that there was not a reasonable subjective or objective basis to support the employee’s pre-existing degenerative arthritis was accelerated or modified in any way. Dr. Fey opined that the employee’s current ankle condition was unrelated to her January 2014 work injury and that an ankle fusion would not be reasonable treatment for a mild ankle sprain.
The employee also had an IME with Dr. Bert at the request of the employee’s attorney. He emphasized that the employee’s pre-existing arthritis did not impose any limitations on the employee, and that the employee sustained a permanent aggravation to her arthritis as a result of the work injury.
The employee filed a claim petition on January 20, 2015 seeking approval of a right ankle arthrodesis and claiming TTD, PPD, and medical expenses. The compensation judge held a hearing on the matter on February 5, 2016 and issued a Findings and Order on April 4, 2016. The compensation judge adopted the opinion of Dr. Fey and rejected the opinions of Dr. Collier and Dr. Bert. The employee appealed.
The WCCA notes that the standard of review on appeal is whether the compensation judge’s determination is supported by substantial evidence; findings of fact are to be upheld unless clearly erroneous. It also notes that a if a compensation judge relies on an expert opinion, such opinion (and the facts assumed within the opinion) must be supported by substantial evidence. Mattick (Citing Nord v. City of Cook, 360 N.W.2d 337, 342-43). In its opinion, the WCCA noted the McClellan factors that assist judges in determining whether an aggravation is temporary or permanent. Although the court notes that using these factors is not necessary, they are still useful. The McClellan Factors are:
(1) the nature and severity of the preexisting condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee’s work duties and non-work activities during the relevant period; and (6) medical opinions on the issue.
McClellan, slip op. (W.C.C.A. Oct. 18, 1994).
The WCCA stated that Dr. Fey overlooked significant aspects of the employee’s condition, particularly the comparison of the employee’s symptoms before and after the work injury as described by Dr. Bert. Dr. Fey also suggested that the employee’s condition improved and her diagnosis changed, which was not reflected in the other medical records. Accordingly, the WCCA held that the Dr. Fey’s opinion was not supported by substantial evidence. In turn, since the compensation judge relied on Dr. Fey’s opinion in her decision, the WCCA reversed the compensation judge’s decision as not being supported by substantial evidence.
Judge Sundquist dissented from the majority opinion, indicating that the record as a whole does provide substantial evidence to support the compensation judge’s finding that the employee’s injury was temporary in nature.